Park v Minister for Immigration - [2007] FMCA 808

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 808

MIGRATION – MRT decision – special eligibility residence visa for ‘close ties’ – whether applicant spent formative years as a minor in Australia – Tribunal’s reliance on information given to Department in psychologist’s report – report re‑presented to Tribunal by applicant – no obligations under s.359A(1) – no failure to consider relevant matters – application dismissed.

Migration Act 1958 (Cth), ss.359A, 359A(1), 359A(1)(b), 359A(1)(c), 359A(4)(b), 359B(2), 379A(4), 379C(4), 474(1), 476(1)

Migration Regulations 1994 (Cth), reg.4.17(4), Sch.2 items 832, 832.212(4), 832.212(4)(d), 832.221(3)(b), 832.221(3)(c), Sch.4 items 4009 and 4010

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
Khan v Minister for Immigration & Ethnic Affairs (1994) 35 ALD 47
M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZELA v Minister for Immigration & Anor [2005] FMCA 1068
SZEXZ v Minister for Immigration, Multicultural & Indigenous Affairs [2006] FCA 449
SZHFW v Minister for Immigration [2006] FMCA 86

Applicant:

JOON BYUNG PARK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG155 of 2006

Judgment of:

Smith FM

Hearing date:

11 April 2007

Date of Last Submission:

24 April 2007

Delivered at:

Sydney

Delivered on:

21 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the First Respondent:

Mr D Jordan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG155 of 2006

JOON BYUNG PARK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 17 January 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 16 December 2005. The Tribunal affirmed a decision of a delegate made on 11 February 2005, which refused to grant a “Special Eligibility” (Residence)(Class AO) subclass 832 (close ties) visa to the applicant in response to his application lodged on 9 August 2004.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1), so that I do not have power to remit the matter for reconsideration unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant qualifies for the visa he sought or for any other permission to reside in Australia.
The applicant is a Korean national, born on 3 May 1986, who entered Australia in 1999 at the age of 13 as a member of the family unit of his parents who came to Australia on temporary business visas. He attended the local high school, and enrolled in actuarial studies at Macquarie University. He started attending Church, although his parents were not Christian. He left their home in December 2003, after taking advice about his future migration status at a time when his parents’ continuing residence was in doubt. He first lived with a family friend in their neighbourhood and, when they returned to Korea, he lived with his uncle.
The “close ties” on‑shore visa subclass which the applicant sought was, at that time, governed by criteria set out in item 832 of Sch.2 to the Migration Regulations 1994 (Cth). Its time‑of‑application criteria included:
832.212
(4)An applicant meets the requirements of this subclause if the applicant:
(a)first entered Australia before the applicant turned 18; and
(b)has never held either of the following:
(i) a student visa;
(ii) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations, for the purposes of a course of study; and
(c)has turned 18; and
(d)before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia; and
(e)ceased to hold an entry permit or a substantive visa before turning 18.
Its time‑of‑decision criteria included that “the applicant is not a member of, and does not reside with, the family unit (if any), with which the applicant first entered Australia” (cl.832.221(3)(b)), and satisfaction of public interest criteria that the applicant “intends to live permanently in Australia” and “is likely to become established in Australia without undue personal difficulty and without imposing undue difficulties or costs on the Australian community” (cl.832.221(3)(c) and Sch.4 items 4009 and 4010).
In the present case, both the delegate and the Tribunal found that the applicant did not meet the “formative years in Australia” criterion in item 832.212(4)(d), and refused the visa application on that basis alone.
The two grounds for judicial review in this Court address a procedural aspect of the Tribunal’s decision, and the sufficiency of its consideration of the applicant’s case. They do not require me to attempt to elucidate how a decision should be made applying this criterion, which makes assumptions about the formation of human character which many participants in the “nature or nurture” debate might question. I note that its language was examined by Lindgren J in Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 at [13]‑[18], and was also addressed by Whitlam J in Khan v Minister for Immigration & Ethnic Affairs (1994) 35 ALD 47.

Ground 1

Ground 1 of the amended application filed at the hearing was:
1.The second respondent (the Tribunal) committed jurisdictional error in that it failed to comply with the requirements of s 359A of the Migration Act.
Particulars
(a)Failure to ensure, as far as reasonably practical, that the applicant understood why the information disclosed in the third and fourth dot points of its s 359A letter of 14 November 2005 were relevant to the review.
(b)Failure to permit the applicant a reasonable period to comment on that information pursuant to s 359B(2) Migration Act.
Further particulars
(i) The Tribunal made its decision within the time it permitted for the applicant to comment thereon. The invitation issued pursuant to s 359A(1)(c) was therefore a hollow shell or an empty gesture.
Section 359A provides:
SECT 359AApplicant must be given certain information
(1)Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(4)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non‑disclosable information.
The first particular of this ground challenges the sufficiency of the terms of a letter dated 14 November 2005, in which the Tribunal invited the applicant to comment upon information in documents on the Department’s file. In particular, the applicant contends that the Tribunal failed to give a sufficient explanation of the potential relevance of information which it identified:
·You provided to the Department a psychology report dated 6 July 2004. The report indicated amongst other things:
Mr Park tells me that he was living at home until December of last year when he initiated a move from home to live part‑time with family friends. He tells me that recently he began to live permanently with these friends. …
Since moving out of home permanently he has begun to pay rent.
·The psychologist report dated 6 July 2004 shows that your move out of the family home was ‘part‑time’ and only became full‑time a short time before 6 July 2004, which appears to be after your birthday.
This information is relevant to the issue of whether before turning 18; you spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.
The Tribunal’s statement of reasons contains the following consideration of a report by a psychologist, Dr Lennings:
63.The visa applicant’s evidence suggested that he moved out of the family home in December 2003 and lived with Mr Richter’s family. Mr Richter indicated at the hearing that the visa applicant moved to his residence in 2004. However, the psychologist report indicated amongst other things:
Mr Park tells me that he was living at home until December of last year when he initiated a move from home to live part‑time with family friends. He tells me that recently he began to live permanently with these friends. …
Since moving out of home permanently he has begun to pay rent.
64.The psychologist report dated 6 July 2004 shows that the visa applicant’s move out of his family home was ‘part‑time’. That is, the visa applicant continued to also reside with his family. The visa applicant turned 18 years on 3 May 2004. The psychologist report suggests that the visa applicant only commenced living with the family friends full‑time ‘recently’: that is, a short time before 6 July 2004, which appears to be after the visa applicant’s birthday. The Tribunal invited comments on this evidence and the visa applicant did not dispute the accuracy of the psychologist’s comments.
65.The visa applicant’s move out of the family home just before he turned 18 years would reasonably have been a significant event in his life. However, the visa applicant did not leave the family home because he wished to be independent of his family or to ‘escape’ his parents’ expectations and influence or because he was rebelling against the Korean family culture in which he had been raised and lived in to that date. The Tribunal finds that the visa applicant moved out of the family home in order to satisfy the relevant criterion at the direction of his parents. The Tribunal finds that the visa applicant moved out of the family home part‑time and continued to also reside with his family.
…
The psychologist report
67.Dr Lennings prepared a psychology report dated 6 July 2004. The report was prepared after a meeting with the visa applicant on 2 July 2004 for a little under an hour, and a telephone conversation on 15 July 2005.
68.The report concluded amongst other things that:
•The visa applicant had developed the skills and attitudes necessary to enter adulthood, and these skills have developed, primarily during the period of time that defines his living in Australia.
•The visa applicant had completed nearly all of his identity development in adolescence and nearly all of that time was spent in Australia.
•The visa applicant had spent the majority of his identity formation years (from 12‑13 years of age to 19‑23 years) in Australia. This amounts to 80‑90% of his formative years.
69.Conversely, the report indicated that:
Without a doubt Joon’s earlier experiences as a child in Korea provided a bed‑rock for the good development he revealed in Australia…
70.The report also indicated that the visa applicant’s identity incorporated the cultural aspects of Australian society that include ‘a sense of being more at ease and with oneself and being what’s commonly referred to as “laid back”’ and the need to achieve a good education and obtain good employment. However, the report concedes that these cultural aspects are shared with other cultures. Indeed, the visa applicant’s evidence was that he was successful and popular at school in Korea and that his parents had instilled in him the need to achieve a good education in order to get good employment. The report indicated the parents ‘nurse high ambitions for his academic success and he says they are quite keen that he achieve at a high level in his education’. It is reasonable to consider that the visa applicant formed his need to achieve a good education and obtain good employment whilst in Korea and that it was instilled in him by his parents when he started his schooling.
71.It is also reasonable to consider that a teenager would generally seek to choose being more laid back than less laid back. The visa applicant’s sense of being more laid back is only one aspect of his identity formation. Also, the visa applicant relates this largely to his impressions of the different education systems and the visa applicant appeared to have few problems with his Korean schooling.
72.The report indicated that:
Whilst many of these cultural aspects are shared with other cultures he also shows specific interests that are common to Australian youth such as an interest in hip hop and rap music, and his interest in expanding his friendship circle with a multicultural group of people. His ideas and interests are broadly Western and Australian.
73.However, the visa applicant indicated at the hearing that he had formed his interest in hip hop and rap music in Korea. He therefore had access to those musical styles in Korea and heard enough to form a preference for that style of music in Korea, and this preference continued during his time in Australia. The Tribunal notes that whilst some Australian youth prefer those musical styles, it is also the case that some Korean youth enjoy those styles, and that the musical styles are indicative of black American culture anyway.
74.Friends and family provided supporting statements include: Ji Hey Yang, Joon Kyoo Yang, Dr Ilyong Son, Angela Kim, Richard Noh, Hyun Sook Lee, David Richter and Yeon Hak Choi. Other school officials also gave letters of commendation. At the hearing 2 friends gave evidence: Mr Richter and Mr Oh. The visa applicant had a good interaction with the school community to the age of 18. He was attending Year 12 in 2004 and had made friends at school and played sport at school. The Tribunal accepts that the visa applicant has made friends in Australia to the age of 18 and has socialised with friends both at school and outside school.
75.The report indicated the visa applicant had an interest in expanding his friendship circle with a multicultural group of people. Conversely, the Tribunal notes that all or most of the visa applicant’s close friends are from the Australian Korean community and Mr Richter was a family friend who became known to the visa applicant’s parents through Mr Richter’s Korean descent wife.
76.The report indicated:
He presents as a young person who has developed reasonable levels of self‑initiative and autonomous behaviour. He is still a young person and will require some support as he finishes his education, but he is clearly self‑governing, able to understand and abide by the conventions of social living, and has age appropriate pursuits.
77.Conversely, the evidence shows that the visa applicant did not independently seek to leave the family home (his parents conceived this plan in order for the visa applicant to claim to meet the criterion) and indeed, lived only part‑time with a friend of his parents until shortly before the report was prepared. The visa applicant’s major life choices were made by his parents. Whilst the visa applicant lived part‑time and later full‑time with Mr Richter and apparently paid $100 per week board, Mr Richter was not able to say whether the visa applicant’s parents provided that money. Nonetheless, even if the money was not provided by the parents, the board money was provided to the visa applicant by his relatives. The evidence does not establish that the visa applicant demonstrated independent behaviour.
78.After examining the report and evidence, the Tribunal does not accept the conclusions of the report.
(emphasis in original)
In response to the first particular of Ground 1, it was not contested by the Minister that the Tribunal relied upon information from Dr Lennings’ report as a part of its reasons for affirming the delegate’s decision.
The submissions of counsel for the parties canvassed the sufficiency of the s.359A letter under s.359A(1)(b), with reference to Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [40]‑[41] and SZELA v Minister for Immigration & Anor [2005] FMCA 1068 at [51]. However, for reasons which I shall explain in the next section of this judgment, I do not need to reach conclusions on this issue.
The second particular of Ground 1, addressed the chronology of the Tribunal’s decision‑making. Its s.359A letter “specified” the “period” within which comments could be given, by referring to a 7 working days deemed‑notification time for posted letters under s.379A(4) and s.379C(4), and to the period for response prescribed under s.359B(2) in reg.4.17(4). This regulation defined that period as one which “starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received”.
The applicant’s solicitor acknowledged receipt of the Tribunal’s letter by facsimile on 15 November 2005, the day after the date of the letter. He lodged a full response to the letter on 22 November 2005. The Tribunal on 29 November 2005 gave notice of its intention to hand down its decision on 16 December 2005, and did hand down its decision on that date.
This chronology supports the second particular of Ground 1, only if the 28 day prescribed period ran from the deemed‑notification date of the s.359A letter, and not from its earlier, actual date of receipt (cf. SZHFW v Minister for Immigration [2006] FMCA 86 at [30]–[45]). The applicant’s contentions also require the Court to conclude that the Tribunal’s failure to wait until after 21 December 2005 before handing down its decision gave rise to jurisdictional error, notwithstanding that the applicant’s response on 22 November 2005 appeared to be complete, and that there is no evidence that he had any expectation of presenting any further response. These issues were explored in submissions before me, with reference to authorities (cf. M v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 333 at [35]‑[38], and SZEXZ v Minister for Immigration, Multicultural & Indigenous Affairs [2006] FCA 449 at [30]‑[49]). However, for reasons which I shall explain in the next section of this judgment, I do not need to examine them further.

The information in Dr Lennings’ report was given to the Tribunal

During the course of his oral submissions, counsel for the Minister raised a preliminary issue going to whether the Tribunal was obliged to put any information from Dr Lennings’ report to the applicant by way of a s.359A(1) letter. In short, he submitted that such an obligation was excluded by s.359A(4)(b), which excludes “information … that the applicant gave for the purpose of the application”. It was therefore immaterial whether the Tribunal’s letter met any of the jurisdictional requirements attaching to compliance with s.359A(1). This contention was further explored in written submissions exchanged after the hearing. In my opinion, it must be accepted, and provides a complete answer to both particulars under Ground 1.
It is now well settled, so far as this Court is concerned, that the exclusion in s.359A(4)(b) applies to information given for the purpose of the application to the Tribunal, so that information given only to the Department of Immigration at the time of visa application is not excluded from obligations under s.359A(1).
The applicant was assisted by his present solicitor, Mr Prince, when presenting his visa application to the Department. By letter dated 28 July 2004, received by the Department on 30 July 2004, Mr Prince made a submission and attached material in support of the application. By letter dated 9 September 2004, and sent to Mr Prince by facsimile on the same day, the case officer requested “further evidence demonstrating that Mr Park has formed a sense of identity and association with Australia and has integrated into the Australian community outside of the school community”.
Mr Prince responded by letter dated 12 October 2004, which “enclosed with this letter” an “expert psychological report” and other material and submissions. Dr Lennings’ report is addressed to Mr Prince and dated 6 July 2004. Although it was reproduced at an earlier position in the Court Book than Mr Prince’s letter, I find that it was the document referred to in Mr Prince’s letter to the Department. This inference was not disputed by the applicant’s counsel.
The report was referred to in the delegate’s “decision record”:
I have also noted the report dated 6 July 2004 by Dr Christopher Lennings, Psychologist, in relation to the applicant’s claim of having formed strong ties to the Australian community. However, I give little weight to this report as Dr Lennings has not been treating the applicant on an ongoing basis, rather, it is clear that the report was provided solely in support of this application as the report refers to the Department’s guidelines regarding the formative years of a person’s life. Dr Lennings states that he saw the applicant for a little under an hour in an interview on 2 July 2004 and had a further telephone conversation with him on 15 July 2004. I am not satisfied that Dr Lennings is familiar with the applicant’s sense of identity as a person after such a short time with him.
The applicant’s application to the Tribunal was lodged by his solicitor, with a covering letter from Mr Prince which stated: “please find enclosed the following documents in support of this application … 2. Decision record of the Department of Immigration …”.
A pre‑hearing submission by Mr Prince to the Tribunal, received on 24 October 2005, included the following statements:
Important documents
As the Tribunal will be aware, Mr Park’s subclass 832 Close Ties visa application, which was lodged with the Department of Immigration & Multicultural & Indigenous Affairs (“DIMIA”) on 29 July 2004, was accompanied by extensive documentary evidence.
In relation to this appeal we especially rely upon that evidence and the covering submissions which accompanied the initial application, as well as the additional evidence and submissions forwarded to DIMIA under cover of 12 October 2004.
…
Dr Christopher Lennings
It is our view that DIMIA then examined the applicant’s supporting evidence with a view to discredit it or to place little or no weight upon it. The treatment of the expert psychological report from Dr Christopher Lennings is a case in point.
DIMIA simply disregarded the entire report without making a single reference to the content, conclusions or opinions expressed in that report, despite the following factors:
·Dr Lennings is a genuine psychological expert of many, many years standing (para 3 and attached resume);
·Rather than simply relaying upon information provided by Mr Park, Dr Lennings had access to Mr Park’s school reports and the Federal Court decision of Khan v MIEA (para 2). Dr Lennings also conducted a Personality Assessment Inventory examination upon Mr Park, being a clinical psychological test, in order to test part of his claims (paras 11‑13);
·Dr Lennings was informed of the purpose for which his report and well acquainted with the legal issues unpinning the concept of formative years (paras 2, 15);
·Dr Lennings’ clinical conclusions and opinions were directly relevant to the issue of formative years.
On the basis of these factors it is our submission that neither DIMIA nor the Tribunal can lawfully dismiss this expert report out of hand unless genuine fault can be pointed to.
(emphasis in original)
The applicant attended a hearing on 27 October 2005. A transcript is not in evidence before me, and the Tribunal does not purport to give a complete description of all the evidence given to the Tribunal by the applicant. It appears that he responded to questions seeking information about his leaving his parent’s home in December 2003, but it is unclear as to the extent to which his responses repeated all the information about this which the Tribunal took from Dr Lennings’ report. However, I do not consider that I need to arrive at conclusions about this.
In my opinion, Mr Prince’s earlier unequivocal statement in his letter of 24 October 2005 that “we especially rely upon … the additional evidence … forwarded to DIMIA under cover of 12 October 2004”, and his submission directed at drawing attention to the contents of Dr Lennings’ report which was part of that “additional evidence”, constituted the “giving” of all the information in that report to the Tribunal. There can be “little doubt that the [applicant] intended the Tribunal to look at this material” (cf. NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [51], citing M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131). The situation is clearer than in NBKT, where Young J, with whose reasons Gyles and Stone JJ agreed, said at [63]: “by filing written submissions with the Tribunal that expressly referred to and incorporated the statement of grounds which was attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application. … This is a sufficient basis to find that the appellant gave the date of her protection visa application to the Tribunal for the purposes of the review application”. Mr Prince’s submission to the Tribunal referred to Dr Lennings’ report “in a way which infers that the Tribunal will have the whole of that document before it (which anyway is no more than common sense would suggest)” (see Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [16]).
Counsel for the applicant sought to avoid these conclusions by reference to a number of judgments of single justices of the Federal Court. However, in my opinion the situation is directly addressed by the two recent judgments of Full Courts which I have cited above. It is also unnecessary to explore authorities on whether oral statements by an applicant in response to questioning by a Tribunal amount to the “giving” of information which is put to him. In the present case, a piece of documentary evidence was re‑presented to the Tribunal with an unqualified invitation to take into account its whole contents. In my opinion, in the circumstances of an administrative review of the present nature, this invitation included the “history” which had been taken by Dr Lennings from the applicant.
I therefore consider that the contentions of jurisdictional error made in Ground 1 of the amended application, based on non‑compliance with requirements of s.359A(1), must all be rejected.
Ground 2 in the amended application was not pressed by counsel for the applicant, and I do not need to consider it.

Ground 3

This ground contends:
3.The Tribunal committed jurisdictional error in that it failed to consider the case put forward by the applicant.
Particulars
(a)Failure to consider the applicant’s claim that he had rejected the Korean lifestyle.
(b)Failure to consider that he had adopted Christianity as a source of comfort and belief.
The Tribunal’s reasoning under the heading “Conclusions” was:
81.The visa applicant had few significant ties with the Australian community to the age of 18 years, other than his attendance at school. Since he arrived in Australia, to the age of 18 years, he held visas based upon his parents’ applications. The visa applicant lived as part of the family unit of his parents for all or most of that period. He spoke Korean at home. The visa applicant went to school to the age of 18 years. He adjusted well to schooling in Australia and prefers the Australian education system. However, his preference appears to largely be for the laidback style of education, rather than any quality in education standards. A preference for, and involvement in schooling, does not of itself show a sense of identity with the Australian community. Australia has many overseas students and the mere attendance of a student in an Australian education institution does not of itself show a sense of identity with the Australian community.
82.The visa applicant joined several clubs after he turned 18 and after he lodged his application. He has some interest in sport but appears to have largely played sport through school or with his friends socially. He has an interest in music which began in Korea.
83.Many or most of the visa applicant’s friends were of Korean background: for example the Church groups appeared to be largely or solely people of Korean background and the visa applicant became involved in the Church activities because he wanted to do what his friends were doing. The visa applicant appears to have socialised largely or solely with his family and people of Korean background. The Tribunal is not suggesting that Australians of Korean background are not a part of the Australian community. Rather, it is reasonable to conclude that he was most comfortable with people of Korean background because they spoke Korean, as he did during his formative years in Korea and at home in Australia, and they had a shared culture which the visa applicant strongly identified with and which had greatly affected him during his formative years in Korea.
84.The visa applicant spent a total of about 4 years and 11 months in Australia to the age of 18 years. Before that, the visa applicant spent all his life in Korea. The Tribunal finds that the visa applicant largely formed his sense of identity in Korea. The Tribunal concludes that in Australia the visa applicant identified strongly with Korean culture and values as shown by his focus on schooling, the strong family involvement in all aspects of his life, his involvement in the Korean Church, largely Korean background friends, choice of doing work experience at a Korean shop and then working part‑time there, and his experiences with Korean entertainment groups. The Tribunal concludes that the visa applicant’s demonstrated strong and ongoing identification with Korean culture and values is entirely consistent with the visa applicant having attained the significant portion of his cultural and social views and notion of personal identity while in Korea and where he was exposed to the Korean norms and mores. The Tribunal finds that at the age of 18 years, the visa applicant’s identification with Korean culture outweighed the visa applicant’s identification with Australian culture. The Tribunal considers that the visa applicant’s formative years began when he commenced his schooling in Korea.
85.After considering the legislation and evidence cumulatively and carefully, the Tribunal finds that the visa applicant, before turning 18, did not spend the greater part of the period that the Minister regards as his formative years in Australia. …
(emphasis in original)
The applicant’s counsel addressed Ground 3 in his written submission without any reference to authority. He submitted:
30.It was noted above that para 15 that the Tribunal did not refer at all to Mr Park’s original statement at RD 21‑27, and specifically his rejection of Korean lifestyle (at RD 24 [18]) and his adoption of Christianity, not only as a social outlet, but as a source of comfort and belief (at RD 25, affirmed at RD 104). According to his evidence, both aspects of his personality and outlook originated in Australia. They were specific issues in his case, but the Tribunal did not consider them at all. This too is jurisdictional error.
The specific parts of the applicant’s original statement to the Department which it was argued were not taken into account were:
18.An important time came in my life during High School that made me stop and think about my life in Australia. In about year 9 or 10 I really began to compare Korean life and Australian life. When I thought about Korea, I had no desire to go back there. The lifestyle made no sense to me, it is too hectic and crowded. I decided that I wanted to continue my education in Australia. That was my major decision in my life, and I decided to stay in Australia. My parents would sometimes ask me whether I preferred Australia or Korea, and I knew even before they asked me that I wanted to stay in Australia. I talked about this with my friends at school, and I sought their opinion. They all thought that it would be better to stay in Australia, especially those who had experienced the Korean lifestyle.
…
21.Now when I encounter a difficulty or when I am stressed or pressured, I go to a Catholic church. It calms my mind and gives me mental support to be able to pray to God about problems that are bothering me. I usually go to church on the weekend or once a fortnight.
However, I am not persuaded that the Tribunal overlooked these aspects of the applicant’s evidence. In the course of its statement of reasons, it identified the applicant’s claim to have “adopted” Christianity. It referred to this element when summarising his evidence:
10.The visa applicant stated he had spent the greater part of his formative years in Australia. He had made friends and started going to Church. He is currently studying Actuarial Studies at Macquarie University because he studied High School here. He started attending Church in 2001. His parents are not Christian. He decided to become a Christian because he thought he would be socially isolated if he did not do what his Korean friends were doing. He first went to a Catholic Church near Cherrybrook and then went to a Presbyterian Church (the Epping Covenant Church). The style is a bit different there. He considers himself a protestant now.
(emphasis in original)
The Tribunal then made further references to evidence concerning the applicant’s attendances at Church, and discussed the significance of this evidence:
52.The visa applicant commenced attending Church in 2001 and stated at the hearing he now considers himself a Protestant Christian. The Tribunal asked why he started going to Church (as his parents were not Christians). The visa applicant indicated that his Korean friends were going to Church and he wanted to do what they were doing: he did not want to be left out. He first went to a Catholic Church at Cherrybrook and now attends the Epping Covenant Church. The Tribunal asked him about this change of denomination. The visa applicant considered that the style of the service was a bit different and more enthusiastic and did not express any particular views about his religious belief. The visa applicant had not attended Church in Korea and this was something he started without family involvement.
53.Conversely, Korea has a large proportion of Christians of many denominations and the visa applicant indicated that he started going to Church for the social aspects of doing things with his Korean background friends. A reference from the Senior Minister Sun Il Jeong provided to the Tribunal, shows that the visa applicant commenced going to the Korean Epping Covenant Church of Christ. It is reasonable to consider that this Church is established to cater for the Korean community. Indeed, a photo of the annual Church camp in 2003 provided to the Tribunal shows male youth from the Korean community in Australia.
In paragraph [83] and [84] of its concluding reasons, extracted above, the Tribunal referred to “his involvement in the Korean Church”, albeit in a manner which did not accept the applicant’s claim that his Church activities and conversion to Christianity indicated an Australian rather than Korean “sense of identity”.
I consider that counsel’s arguments amounted to no more than criticisms of the significance given by the Tribunal to elements in the applicant’s case, and of the merits of its ultimate conclusions. I am not persuaded that they have shown that the Tribunal overlooked any element in the applicant’s case which it was required to take into account as a matter of jurisdiction. I therefore do not accept this ground.
Since I have rejected all the grounds argued before me, I must dismiss the application.

I certify that the preceding thirty‑seven (37) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 21 June 2007